Tom Goldstein is a partner at Akin Gump Strauss Hauer & Feld, and lecturer at Stanford and Harvard Law Schools. He is the founder of SCOTUSblog.
It is remarkable how much ink has been spilled on Sonia Sotomayor's ethnic background rather than her legal background.
From the moment the nomination was announced, talking heads have called the President's choice one based on "pandering to Hispanics" or "checking the box" for minorities. Some have suggested that a white man with her resume would not be so highly praised or that her academic successes were nothing more than affirmative action. Innumerable news features on Sotomayor have described her nomination in terms of identity politics or a symbol of rapprochement to the Hispanic community.
In the rush the find Sotomayor's "biases," media personalities and conservative opponents latched onto her Berkeley speech on "A Latina Judge's Voice," which provoked Rush Limbaugh's accusations that she is a "reverse racist" and Newt Gingrich's now-infamous "tweets" calling for her to withdraw. Instead of looking to the legal precedent in the Second Circuit's Ricci opinion, the Judicial Confirmation Network said "[Sotomayor] reads racial preferences and quotas into the Constitution, even to the point of dishonoring those who preserve our public safety."
Anything "ethnic," from the food she eats to the way she pronounces her last name, has been discussed as possibly influencing her jurisprudence. The mainstream media has highlighted her group affiliations, college comments, and a law school discrimination complaint as evidence of her racial preference possibly trumping pragmatism. And then there's been the blatant race baiting: most shockingly, Rep. Tom Tancredo today called the civil rights advocacy group La Raza, of which she is a member, "a Latino KKK without the hoods or the nooses."
It seems to me that there is an infinitely simpler and more accurate way of figuring out whether Judge Sotomayor decides cases involving race fairly and dispassionately--read her decisions. So I did: I am in the midst of reviewing every single race-related case on which she sat on the Second Circuit.
There are roughly 100. They cover the gamut from employment discrimination to racial bias in jury selection. I decided that I would stop and write an interim report once I got through her 50 most recent race-related cases other than Ricci because the numbers are sufficiently striking and decisive. Here is what I found.
In those 50 cases, the panel accepted the claim of race discrimination only three times. In all three cases, the panel was unanimous; in all three, it included a Republican appointee. In roughly 45, the claim was rejected. (Two were procedural dispositions.)
On the other hand, she twice was on panels reversing district court decisions agreeing with race-related claims--i.e., reversing a finding of impermissible race-based decisions. Both were criminal cases involving jury selection.
In the 50 cases, the panel was unanimous in every one. There was a Republican appointee in 38, and these panels were all obviously unanimous as well. Thus, in the roughly 45 panel opinions rejecting claims of discrimination, Judge Sotomayor never dissented.
It seems to me that these numbers decisively disprove the claim that she decides cases with any sort of racial bias.
I also looked at whether there was anything nefarious in the failure of the Ricci panel to publish a substantial opinion. From the pool of 50, the panel affirmed a district court's decision rejecting a claim of employment discrimination or retaliation (as in Ricci) 28 times; it did so by unpublished order in 24. Whatever one thinks of the argument that the issues in Ricci deserved more attention than the panel gave them, the decision not to publish an opinion seems to have been pretty commonplace.
Here is what the data shows in sum:
Other than Ricci, Judge Sotomayor has decided 96 race-related cases while on the court of appeals.
Of the 96 cases, Judge Sotomayor and the panel rejected the claim of discrimination roughly 78 times and agreed with the claim of discrimination 10 times; the remaining 8 involved other kinds of claims or dispositions. Of the 10 cases favoring claims of discrimination, 9 were unanimous. (Many, by the way, were procedural victories rather than judgments that discrimination had occurred.) Of those 9, in 7, the unanimous panel included at least one Republican-appointed judge. In the one divided panel opinion, the dissent's point dealt only with the technical question of whether the criminal defendant in that case had forfeited his challenge to the jury selection in his case. So Judge Sotomayor rejected discrimination-related claims by a margin of roughly 8 to 1.
Of the roughly 75 panel opinions rejecting claims of discrimination, Judge Sotomayor dissented 2 times. In Neilson v. Colgate-Palmolive Co., 199 F.3d 642 (1999), she dissented from the affirmance of the district court's order appointing a guardian for the plaintiff, an issue unrelated to race. In Gant v. Wallingford Bd. of Educ., 195 F.3d 134 (1999), she would have allowed a black kindergartner to proceed with the claim that he was discriminated against in a school transfer. A third dissent did not relate to race discrimination: In Pappas v. Giuliani, 290 F.3d 143 (2002), she dissented from the majority's holding that the NYPD could fire a white employee for distributing racist materials.
As noted in the post below, Judge Sotomayor was twice on panels reversing district court decisions agreeing with race-related claims--i.e., reversing a finding of impermissible race-based decisions. Both were criminal cases involving jury selection.
The numbers relating to unpublished opinions continued to hold as well. In the roughly 55 cases in which the panel affirmed district court decisions rejecting a claim of employment discrimination or retaliation, the panel published its opinion or order only 5 times.
In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times. Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred. (In another case (Pappas) she dissented to favor a white bigot.) She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims. Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.
Though the study dealt with panel opinions, Jonathan Adler helpfully reminds me of Judge Sotomayor's dissent in Hayden v. Pataki--which I discuss here--in which she urged that felon disenfranchisement laws violate the Voting Rights Act.